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FILED: QUEENS COUNTY CLERK 03/02/2022 08:58 AM INDEX NO. 717964/2018
NYSCEF DOC. NO. 203 RECEIVED NYSCEF: 03/02/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
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THERESA ROBINSON and DEREK ROBINSON, Index No.: 717964/2018
Plaintiff(s),
-against- ATTORNEY AFFIRMATION
IN OPPOSITION
TO PLAINTIFFS’
CROSS-MOTION
TO REARGUE
NORTHWELL HEALTH, INC., LONG ISLAND
JEWISH MEDICAL CENTER, DEEPAK NANDA,
M.D., P.C.,DEEPAK NANA, M.D.
and EMMAUEL PAFOS, M.D. Assigned Justice:
Hon. Peter J. O’Donoghue, J.S.C.
,
Defendants.
═════════════════════════════════════
YANIQUE L. BURKE, an attorney duly admitted to practice law before the
Courts of the State of New York hereby affirms the following under the penalties of
perjury:
1. I am affiliated with the law firm of AARONSON RAPPAPORT FEINSTEIN
& DEUTSCH, LLP, attorneys for the defendants NORTHWELL HEALTH, INC. and
LONG ISLAND JEWISH MEDICAL CENTER. in the above-captioned matter. As such, I
am fully familiar with the facts and circumstances set forth herein based upon a review
of the file maintained by this office.
2. I respectfully submit this Affirmation in opposition to plaintiff’s cross-
motion seeking an Order:
(1) pursuant to CPLR 2221 for leave to reargue to this
Court’s decision dated December 6, 2021,
dismissing the medical malpractice claim and loss
{G0459307}
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of consortium claims against defendant LONG
ISLAND JEWISH MEDICAL CENTER;
(2) upon reargument, denying summary judgment
made on behalf of LONG ISLAND JEWISH
MEDICAL CENTER as to the medical malpractice
and loss of consortium claims; and
(3) for such other, further and different relied as to this
Court duly seems just and proper.
PRELIMINARY STATEMENT
The Court has the full record in the underlying motion and should evaluate the
merits of the instant motion to renew/reargue.
Herein, defendant, Long Island Jewish Medical Center (“LIJMC”), respectfully
requests that this Court deny plaintiff’s cross-motion pursuant to CPLR 2221 for leave to
reargue the Court’s decision dismissing the medical malpractice claim and loss of
consortium claims against defendant LIJMC; as this Court properly determined that
such claims were brought well beyond the prescribed statute of limitations and were
time-barred. (See NYSCEF doc #166 December 6, 2021 decision and order as to Motion
Sequence 005 and referenced herein as “Exhibit “A”). In arriving at this decision, the
court correctly concluded that the action against LIJMC was brought more than two and
one half years (2 1/2 years) after April 17, 2016, the date when the patient was discharge
from the hospital and received no further care or treatment from LIJMC relative to her
delivery. Further, this court rightly found that plaintiff failed to raise an question of fact
as to whether LIJMC’s treatment was tolled pursuant to the continuous treatment
doctrine, and correctly found that the evidence demonstrates that both co-defendant
OB/GYN physicians Dr. Deepak Nanda and Dr. Emmanuel Pafos, though they both
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testified that they were employees of LIJMC, rendered care to plaintiff in their capacities
as employees of codefendant Deepak Nanda, M.D., P.C., and not as employees of
LIJMC. Consequently, the care rendered to the plaintiff by these physicians during her
prenatal visits, her LIJMC delivery admission and in her postpartum visits were as
employees of the professional corporation, and LIJMC can have no liability for such
care. More particularly, the Court correctly found that LIJMC has no liability for the
postpartum care which occurred at the private office of Deepak Nanda, M.D., P.C. by the
codefendants, and as such, plaintiff cannot claim that such care was continuous
treatment by LIJMC to toll the statute of limitations.
It is therefore respectfully submitted that this Court did not overlook or
misapprehend matters of fact or law in determining the defendant’s motion. The Court’s
award of dismissal was completely supported by the record before this Court, including
the sworn testimony of the codefendants who rendered the care in question.
Consequently, the Court’s decision with regard to these claims was proper and should
not be disturbed.
PROCEDURAL HISTORY
This action was commenced by the filing of a Summons and Complaint in
Supreme Court, Queens County, on or about November 22, 2018. Defendant adopts the
procedural history set forth in its underlying motion. (See Motion sequence 005 and all
corresponding affirmations in support, opposition and reply and their exhibits e-filed as
documents # 120-147; 156-158 and 165 and referenced herein as Exhibit “B.”).
On June 16, 2021, LIJMC moved to dismiss and for summary judgment pursuant
to CPLR §§ 3211 and 3212 based on the statute of limitations and the supportive expert
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affirmation of its board certified obstetrical and gynecological expert, Dr. Jay Stephen
Lupin. On August 4, 2021, plaintiff filed an opposition to the aforesaid motion claiming
there was an issue of fact as to whether LIJMC’s treatment was continuous beyond April
17, 2016, as both codefendant physicians who treated the plaintiff were also employees
of LIJMC, in addition to being employed by codefendant Deepak Nanda, M.D., P.C. In
LIJMC’s August 24, 2021 reply (NYSCEF doc #165 LIJMC Reply to Motion Sequence
005 and referenced herein as “Exhibit “C”), LIJMC argued that plaintiff failed to rebut
LIJMC’s prima facie showing that there was no continuous care after the April 17, 2016
discharge, highlighting the testimony of plaintiff herself as to her understanding that
she was under the care of the private practice, as well as the testimony of Dr. Nanda that
the patient was admitted to LIJMC under the practice as their private patient. (See
pages 4-12 of NYSCEF doc #165). LIJMC also pointed to the medical records of the
practice evidencing that the postpartum care occurred at the private practice, and that
the patient testified that she never returned to LIJMC after April 17, 2016 in connection
with her delivery. Id. Thus, the Court corrected concluded that plaintiff was a patient of
Deepak Nanda, M.D., P.C. for her postpartum visits with the codefendant on April 28,
2016 and May 23, 2016. The Court further found that plaintiff’s reliance on CPLR
203(b) was misplaced and that the united in interest and relation-back doctrines were
inapplicable to this case.1 On February 4, 2022, plaintiff moved to reargue the Court’s
decision dismissing the medical malpractice and derivative claims against LIJMC. (See
1
Prior to the instant motion and on January 7, 2022, LIJMC moved to reargue only the portion of the
December 6, 2021 decision which denied summary judgment as to the claims against LIJMC of negligent
hiring and credentialing on the grounds that the Court incorrectly opined that LIJMC failed to address
same, despite LIJMC’s statement of undisputed facts and expert affirmation specifically affirming that
such claims were baseless; LIJMC also noted in their reargument motion that plaintiff never challenged
such assertions, and therefore, has conceded appropriate hiring and credentialing by LIJMC, and as
such, and upon a granting of reargument, these claims should also be dismissed against LIJMC. (See
Motion Sequence # 006 NYSCEF doc #176-180).
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Plaintiff Cross-Motion NYSCEF doc #189-192). Plaintiff did not oppose dismissal of the
lack of informed consent claims, and as therefore, conceded that dismissal of this claim
was proper.
Defendant LIJMC now opposes plaintiff’s cross-motion to reargue the dismissal
of the medical malpractice and derivative claim against LIJMC.
ARGUMENT
CPLR §2221 states in pertinent part that:
(d) A motion for leave to reargue:
1. shall be identified specifically as such;
2. shall be based upon matters of fact or law allegedly overlooked or
misapprehended by the court in determining the prior motion, but shall
not include any matters of fact not offered on the prior motion; and
3. shall be made within thirty days after service of a copy of the order
determining the prior motion and written notice of its entry. This rule
shall not apply to motions to reargue a decision made by the appellate
division or the court of appeals.
REARGUMENT IS INAPPROPRIATE IN THE INSTANT MATTER
“Motions for re-argument are addressed to the sound discretion of the court
which decided the prior motion and may be granted upon a showing that the court
overlooked or misapprehended the facts or law or for some reason mistakenly arrived at
its earlier decision.” Carrillo v. PM Realty Group, 16 A.D.3d 611, 793 N.Y.S.2d 69 (2d
Dep’t 2005). It is not designed as a vehicle to afford the unsuccessful party an
opportunity to once again reargue the very questions previously decided. Gellert &
Rodner v. Gem Community Mgt., Inc., 20 A.D.3d 388 (2nd Dep’t 2005). Absent a
showing of misapprehension or the overlooking of a fact, the court must deny the
motion. Barrett v. Jeannot, 18 A.D.3d 679 (2d Dep’t 2005). It is respectfully submitted
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that the plaintiff’s cross-motion does not identify any facts or laws overlooked or
misapprehended in the Court’s decision but is simply a resubmission of arguments
previously rejected by this Court. Accordingly, the cross-motion should be denied in its
entirety.
DR. NANDA AND DR PAFOS EMPLOYMENT BY LIJMC IS IRRELEVANT AS
IT IS UNDISPUTED THAT THE PROPORTED CONTINUOUS CARE
OCCURRED AT A PRIVATE OFFICE AND WITHIN THE PHYSICIAN
CAPACITIES AS EMPLOYEES OF THIS PRIVATE OFFICE
Defendant incorporates by reference each and every argument made in support
of defendants’ motions contending, among other things, that: 1) the plaintiff testified
that she sought and obtained prenatal care from Dr. Deepak Nanda’s private office and
understood that either Dr. Nanda or Dr. Pafos would be delivering her child at LIJMC;
2) Dr. Nanda testified that the patient was admitted to the care of his private office and
that he and Dr. Pafos, the only employees of the practice, attended to the plaintiff on
behalf of the practice; 3) the action was brought more than 2 ½ years after April 17,
2016, the last date of related treated by LIJMC; and 4), there is no evidence that LIJMC
provided continuous care to the plaintiff following her discharge on April 17, 2016.
The doctors’ purported employment by LIJMC is of no import if they did not
render care to plaintiff on behalf of LIJMC and only provided care on behalf of their
employer, Deepak Nanda, M.D., P.C. More importantly, the only relevant employment
or agency to toll the statute of limitations is the care that occurred in the post-partum
visit on May 23, 2016. Plaintiff had two postpartum visits, one on April 28, 2016 and
another on May 23, 2016; May 23, 2016 is the only visit date that would be timely for the
purposes of the statute of limitations against LIJMC. Both post-partum visits occurred
at the codefendant private office weeks after the LIJMC hospital discharge and without
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plaintiff ever contacting LIJMC or ever returning there for any reason related to the
delivery of her child.
As previously explained, April 17, 2016 ended LIJMC’s care of the patient and
there was no expectation by the plaintiff or LIJMC for continued care, and in fact, there
was none. Plans were made for plaintiff to follow up with her private physicians. There
were no regular and routine visits by the plaintiff to LIJMC, nor was there any reliance
expressly or impliedly by the plaintiff of post-discharge management by LIJMC. There
were neither regular scheduled appointments with LIJMC nor any expectation of a
future visit after the April 17, 2016 discharge. The patient’s postpartum visits were with
Deepak Nanda, M.D., P.C. She sought care from this entity and expected postpartum
management from same. The records demonstrate a continuing trust and confidence by
the patient in the practice, not LIJMC. In fact, she never returned to LIJMC until she
presented to the ED a year later for injuries sustained in a motor vehicle accident,
completely unrelated to her delivery.
Even if the doctors were both employed by LIJMC, they did not provide care,
including postpartum, within the scope of their employment by LIJMC or under any
agency theory that one can conceive. Continuing to remind this Court that the doctors
were supposedly employed by LIJMC will not create any agency for care that was
indisputably rendered on behalf of another provider. In fact, the post-partum visits did
not even take place at LIJMC, on its behalf or at its behest. Accordingly, plaintiff cannot
establish that during her postpartum visits with Dr. Pafos at Deepak Nanda, M.D., P.C.
she continued to seek or obtained actual treatment at or from LIJMC and cannot utilize
this cross-motion to reargue in an effort to convince this Court otherwise. Plaintiff had
two postpartum visits, one on April 28, 2016 and another on May 23, 2016, both at
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Deepak Nanda, M.D., P.C; May 23, 2016 is the only visit date that would be timely for
the purposes of the statute of limitations. Plaintiff would have this Court believe that,
on May 23, 2016, a full month after her delivery discharge from LIJMC, and after she
had already had a prior postpartum visit with Deepak Nanda, M.D., P.C., she was still
under the care, even ostensibly, of LIJMC; this spurious reasoning is still unpersuasive
and contrary to the evidence. In fact, plaintiff testified that she had no recall of
returning to LIJMC for any care related to her delivery or the complications she
sustained in connection with same. (See NYSCEF doc #122 page 19). The records and
testimony herein confirm that such care by LIJMC, in fact, never happened.
The plaintiff herein cannot establish a course of treatment by LIJMC for the same
conditions or complaints underlying the medical claims. In fact, the certified records
negates any such claim. Plaintiff’s subsequent return to LIJMC more than a year later
on July 13, 2017 was for a motor vehicle accident, completely unrelated to the injures
being alleged herein. That treatment did not pertain to her bladder, uterus or prior
delivery, and therefore cannot be deemed continuous. In fact, plaintiff’s husband also
testified that plaintiff never followed up with LIJMC in connection with the delivery of
their daughter. (See NYSCEF doc #122 page 18-19). Plaintiff also did not recall a follow
up with the hospital regarding her delivery. (See NYSCEF doc #122 page 19 Exhibit G of
LIJMC motion sequence 5, p. 167, lines 11-19).
Underscoring the fact that there was no expectation of treatment by plaintiff is
paragraph 39 of the plaintiff’s attorney affirmation opposing LIJMC underlying motion,
indicating that the plaintiff “was discharged from LIJMC with instructions as follow-up
with Dr. Nanda as an outpatient,” and paragraphs 41-42 indicating that the “plaintiff
returned to Deepak Nanda, M.D., P.C. for a follow-up post-partum care and Dr. Pafos
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saw her.” (See NYSCEF doc #156). The foregoing statements are consistent with the
evidence that the care was to be continued by a private OB/GYN group. Since plaintiff is
well beyond the statute of limitations concerning the subject admission as a matter of
law and cannot establish ongoing efforts by the hospital subsequently to constitute
continuous treatment, the malpractice claims and the derivative claim related thereto,
were properly dismissed.
IT IS THE PLAINTIFF WHO MISAPPREHENDED THE APPLICATION
OF THE RELATION BACK DOCTRINE AND OVERLOOKED THE FACTS
DISQUALIFYING THIS CASE FROM BEING AFFORDED THE BENEFITS OF
THIS DOCTRINE
LIJMC clearly outlined several reasons for the inapplicability of the relation-back
doctrine to the case at bar. Plaintiff clearly overlooked and/or misapprehended LIJMC
argument that:
“…the ‘relation back doctrine’ does not apply where there is no separate
action or amendment of the pleadings. (See CPLR § 203 (b); Spaulding v.
Mount Vernon Hosp., 283 A.D.2d 634 (2d Dep’t 2001); It does not apply
where there is only one claim or action. In fact, the plaintiff’s own
explanation of the doctrine explicitly states that the doctrine “applies to
separate actions which are ultimately consolidated” or to claims added in
an amended complaint (See ¶48 of the Plaintiff’s Opposition). This action
has neither. In order to establish a relationship between actions, there
must be more than one action, and the earlier of the actions, must be
timely. There is no other claim or action for this Court to refer to or relate
this untimely action to.” (See NYSCEF doc #165 Reply Affirmation in
support of LIJMC Underlying Motion: Sequence 005, pages 12-13).
A clear reading of the above excerpted portion of LIJMC’s motion will reflect that
LIJMC clearly stated, among other things, that the doctrine does not apply where there
is only one claim or action or where there is no attempt to amend the complaint. See
NYSCEF doc #165 Reply Affirmation in support of LIJMC Underlying Motion: Sequence
005, pages 12-13). In fact, plaintiff corrected noted that it “applies to separate actions
which are ultimately consolidated.” See NYSCEF doc #156 Plaintiff Attorney Affirmation
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in Opposition to LIJMC Underlying Motion: Sequence 005, page 13). Yet, to date, and
despite citing a number of cases supporting the application of the doctrine, plaintiff
cannot identify for this court which two actions were consolidated or that her complaint
was amended which would render the doctrine applicable. Respectfully, it is the
plaintiff who continues to misapprehend the law in this regard and the context under
which it applies.
Regarding a “unity of interest” between Deepak Nanda, M.D., P.C. and LIJMC,
plaintiff again misapplies this theory. Again, plaintiff has yet to demonstrate under what
circumstances LIJMC would be united in interest with the aforesaid practice for care
provided by the practice, on its premises and a month after the patient was discharged
from LIJMC with no contact with the hospital. The doctrine cannot be invoked under
these circumstances.
Further, in Spaulding, the court found that even if there was an issue of fact as to
whether the parties were united in interest, the plaintiff in that action failed to meet the
other requirements and establish a relationship between the two different actions. As
discussed above, there is no other action or claim for the court to establish a relationship
with the instant case. Consequently, by any analysis, the doctrine is inapplicable, and
therefore, the expired statute of limitations is not tolled and the Court’s decision in this
regard was proper.
THIS COURT PROPERLY DIMSISSED THE MEDICAL MALPRACTICE AND
LOSS OF CONSORTIUM CLAIMS AGAINST LIJMC
The facts and the law governing this case support a dismissal of the claims against
LIJMC, including a dismissal of the claims of medical malpractice and loss of
consortium.
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The Court correctly found that the statutory time frame governing this, and all other
medical malpractice cases is 2 ½ years and that the plaintiff brought this action on
November 22, 2o18, which was well after the aforesaid time frame. This is well-
established law and is buttressed by the court filings and medical records before this
Court.
The Court also correctly found that the plaintiff failed to raise a triable issue of fact
as to whether the continuous treatment doctrine applied which would toll the statute of
limitations, as there was no evidence that either Dr. Nanda or Dr. Pafos acted as
employees of LIJMC during plaintiff’s labor and delivery or during the follow up
postpartum office visits on April 28, 2016 and May 23, 2016. Although plaintiff argued
strenuously then and now that the doctors are employees of LIJMC, plaintiff has yet to
establish that the care that these doctors rendered to her was within the scope of the
claimed employment. Further, plaintiff has yet to negate the fact that the doctors
treated her within the scope of their employment with Deepak Nanda, M.D., P.C. Any
claimed issue of fact is artificial because plaintiff’s own testimony and that of the doctors
support a finding that the care she received from the physicians was on behalf of Deepak
Nanda, M.D., P.C. as their private patient.
As such, and as plaintiff has not established that the Court overlooked or
misapprehended any law or facts in dismissing the claims against LIJMC of medical
malpractice and loss of consortium, this Court must deny the plaintiff’s cross-motion to
reargue.
WHEREFORE, based upon the foregoing, it is respectfully requested that this
Court deny plaintiff’s cross-motion motion in its entirety.
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Dated: New York, New York
March 2, 2022
Yanique L. Burke
____________________________
Yanique L. Burke
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
═════════════════════════════════
THERESA ROBINSON and DEREK ROBINSON,
Index No.: 717964/2018
Plaintiff,
ATTORNEY 202.8-b
WORD CERTIFICATION
-against-
NORTHWELL HEALTH, INC., LONG ISLAND JEWISH
MEDICAL CENTER, DEEPAK NANDA, M.D., P.C., DEEPAK
NANDA, M.D. and EMMANUEL PAFOS, M.D.,
Defendant.
═════════════════════════════════
I hereby certify, pursuant to 22 NYCRR §202.8-b, that the total number of words
in the foregoing Affirmation in Opposition to the Plaintiff’s Cross-Motion, inclusive of
point headings and footnotes, and exclusive of the caption and signature block is 3323,
and thus complies with the word count limit of 7,000 words for affidavits, affirmations,
briefs and memorandum of law.
Dated: New York, New York
March 2, 2022
Yours, etc.
AARONSON RAPPAPORT FEINSTEIN
& DEUTSCH, LLP
Yanique L. Burke
____________________
YANIQUE L. BURKE
Attorneys for Defendants
NORTHWELL HEALTH, INC. and
LONG ISLAND JEWISH MEDICAL
CENTER
600 Third Avenue
New York, NY 10016
(212) 593-6700/(929)-286-3341
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Preview
FILED: QUEENS COUNTY CLERK 03/02/2022 08:58 AM INDEX NO. 717964/2018 NYSCEF DOC. NO. 203 RECEIVED NYSCEF: 03/02/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ══════════════════════════════════ THERESA ROBINSON and DEREK ROBINSON, Index No.: 717964/2018 Plaintiff(s), -against- ATTORNEY AFFIRMATION IN OPPOSITION TO PLAINTIFFS’ CROSS-MOTION TO REARGUE NORTHWELL HEALTH, INC., LONG ISLAND JEWISH MEDICAL CENTER, DEEPAK NANDA, M.D., P.C.,DEEPAK NANA, M.D. and EMMAUEL PAFOS, M.D. Assigned Justice: Hon. Peter J. O’Donoghue, J.S.C. , Defendants. ═════════════════════════════════════ YANIQUE L. BURKE, an attorney duly admitted to practice law before the Courts of the State of New York hereby affirms the following under the penalties of perjury: 1. I am affiliated with the law firm of AARONSON RAPPAPORT FEINSTEIN & DEUTSCH, LLP, attorneys for the defendants NORTHWELL HEALTH, INC. and LONG ISLAND JEWISH MEDICAL CENTER. in the above-captioned matter. As such, I am fully familiar with the facts and circumstances set forth herein based upon a review of the file maintained by this office. 2. I respectfully submit this Affirmation in opposition to plaintiff’s cross- motion seeking an Order: (1) pursuant to CPLR 2221 for leave to reargue to this Court’s decision dated December 6, 2021, dismissing the medical malpractice claim and loss {G0459307} 1 of 13 FILED: QUEENS COUNTY CLERK 03/02/2022 08:58 AM INDEX NO. 717964/2018 NYSCEF DOC. NO. 203 RECEIVED NYSCEF: 03/02/2022 of consortium claims against defendant LONG ISLAND JEWISH MEDICAL CENTER; (2) upon reargument, denying summary judgment made on behalf of LONG ISLAND JEWISH MEDICAL CENTER as to the medical malpractice and loss of consortium claims; and (3) for such other, further and different relied as to this Court duly seems just and proper. PRELIMINARY STATEMENT The Court has the full record in the underlying motion and should evaluate the merits of the instant motion to renew/reargue. Herein, defendant, Long Island Jewish Medical Center (“LIJMC”), respectfully requests that this Court deny plaintiff’s cross-motion pursuant to CPLR 2221 for leave to reargue the Court’s decision dismissing the medical malpractice claim and loss of consortium claims against defendant LIJMC; as this Court properly determined that such claims were brought well beyond the prescribed statute of limitations and were time-barred. (See NYSCEF doc #166 December 6, 2021 decision and order as to Motion Sequence 005 and referenced herein as “Exhibit “A”). In arriving at this decision, the court correctly concluded that the action against LIJMC was brought more than two and one half years (2 1/2 years) after April 17, 2016, the date when the patient was discharge from the hospital and received no further care or treatment from LIJMC relative to her delivery. Further, this court rightly found that plaintiff failed to raise an question of fact as to whether LIJMC’s treatment was tolled pursuant to the continuous treatment doctrine, and correctly found that the evidence demonstrates that both co-defendant OB/GYN physicians Dr. Deepak Nanda and Dr. Emmanuel Pafos, though they both 2 2 of 13 FILED: QUEENS COUNTY CLERK 03/02/2022 08:58 AM INDEX NO. 717964/2018 NYSCEF DOC. NO. 203 RECEIVED NYSCEF: 03/02/2022 testified that they were employees of LIJMC, rendered care to plaintiff in their capacities as employees of codefendant Deepak Nanda, M.D., P.C., and not as employees of LIJMC. Consequently, the care rendered to the plaintiff by these physicians during her prenatal visits, her LIJMC delivery admission and in her postpartum visits were as employees of the professional corporation, and LIJMC can have no liability for such care. More particularly, the Court correctly found that LIJMC has no liability for the postpartum care which occurred at the private office of Deepak Nanda, M.D., P.C. by the codefendants, and as such, plaintiff cannot claim that such care was continuous treatment by LIJMC to toll the statute of limitations. It is therefore respectfully submitted that this Court did not overlook or misapprehend matters of fact or law in determining the defendant’s motion. The Court’s award of dismissal was completely supported by the record before this Court, including the sworn testimony of the codefendants who rendered the care in question. Consequently, the Court’s decision with regard to these claims was proper and should not be disturbed. PROCEDURAL HISTORY This action was commenced by the filing of a Summons and Complaint in Supreme Court, Queens County, on or about November 22, 2018. Defendant adopts the procedural history set forth in its underlying motion. (See Motion sequence 005 and all corresponding affirmations in support, opposition and reply and their exhibits e-filed as documents # 120-147; 156-158 and 165 and referenced herein as Exhibit “B.”). On June 16, 2021, LIJMC moved to dismiss and for summary judgment pursuant to CPLR §§ 3211 and 3212 based on the statute of limitations and the supportive expert 3 3 of 13 FILED: QUEENS COUNTY CLERK 03/02/2022 08:58 AM INDEX NO. 717964/2018 NYSCEF DOC. NO. 203 RECEIVED NYSCEF: 03/02/2022 affirmation of its board certified obstetrical and gynecological expert, Dr. Jay Stephen Lupin. On August 4, 2021, plaintiff filed an opposition to the aforesaid motion claiming there was an issue of fact as to whether LIJMC’s treatment was continuous beyond April 17, 2016, as both codefendant physicians who treated the plaintiff were also employees of LIJMC, in addition to being employed by codefendant Deepak Nanda, M.D., P.C. In LIJMC’s August 24, 2021 reply (NYSCEF doc #165 LIJMC Reply to Motion Sequence 005 and referenced herein as “Exhibit “C”), LIJMC argued that plaintiff failed to rebut LIJMC’s prima facie showing that there was no continuous care after the April 17, 2016 discharge, highlighting the testimony of plaintiff herself as to her understanding that she was under the care of the private practice, as well as the testimony of Dr. Nanda that the patient was admitted to LIJMC under the practice as their private patient. (See pages 4-12 of NYSCEF doc #165). LIJMC also pointed to the medical records of the practice evidencing that the postpartum care occurred at the private practice, and that the patient testified that she never returned to LIJMC after April 17, 2016 in connection with her delivery. Id. Thus, the Court corrected concluded that plaintiff was a patient of Deepak Nanda, M.D., P.C. for her postpartum visits with the codefendant on April 28, 2016 and May 23, 2016. The Court further found that plaintiff’s reliance on CPLR 203(b) was misplaced and that the united in interest and relation-back doctrines were inapplicable to this case.1 On February 4, 2022, plaintiff moved to reargue the Court’s decision dismissing the medical malpractice and derivative claims against LIJMC. (See 1 Prior to the instant motion and on January 7, 2022, LIJMC moved to reargue only the portion of the December 6, 2021 decision which denied summary judgment as to the claims against LIJMC of negligent hiring and credentialing on the grounds that the Court incorrectly opined that LIJMC failed to address same, despite LIJMC’s statement of undisputed facts and expert affirmation specifically affirming that such claims were baseless; LIJMC also noted in their reargument motion that plaintiff never challenged such assertions, and therefore, has conceded appropriate hiring and credentialing by LIJMC, and as such, and upon a granting of reargument, these claims should also be dismissed against LIJMC. (See Motion Sequence # 006 NYSCEF doc #176-180). 4 4 of 13 FILED: QUEENS COUNTY CLERK 03/02/2022 08:58 AM INDEX NO. 717964/2018 NYSCEF DOC. NO. 203 RECEIVED NYSCEF: 03/02/2022 Plaintiff Cross-Motion NYSCEF doc #189-192). Plaintiff did not oppose dismissal of the lack of informed consent claims, and as therefore, conceded that dismissal of this claim was proper. Defendant LIJMC now opposes plaintiff’s cross-motion to reargue the dismissal of the medical malpractice and derivative claim against LIJMC. ARGUMENT CPLR §2221 states in pertinent part that: (d) A motion for leave to reargue: 1. shall be identified specifically as such; 2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and 3. shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. This rule shall not apply to motions to reargue a decision made by the appellate division or the court of appeals. REARGUMENT IS INAPPROPRIATE IN THE INSTANT MATTER “Motions for re-argument are addressed to the sound discretion of the court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law or for some reason mistakenly arrived at its earlier decision.” Carrillo v. PM Realty Group, 16 A.D.3d 611, 793 N.Y.S.2d 69 (2d Dep’t 2005). It is not designed as a vehicle to afford the unsuccessful party an opportunity to once again reargue the very questions previously decided. Gellert & Rodner v. Gem Community Mgt., Inc., 20 A.D.3d 388 (2nd Dep’t 2005). Absent a showing of misapprehension or the overlooking of a fact, the court must deny the motion. Barrett v. Jeannot, 18 A.D.3d 679 (2d Dep’t 2005). It is respectfully submitted 5 5 of 13 FILED: QUEENS COUNTY CLERK 03/02/2022 08:58 AM INDEX NO. 717964/2018 NYSCEF DOC. NO. 203 RECEIVED NYSCEF: 03/02/2022 that the plaintiff’s cross-motion does not identify any facts or laws overlooked or misapprehended in the Court’s decision but is simply a resubmission of arguments previously rejected by this Court. Accordingly, the cross-motion should be denied in its entirety. DR. NANDA AND DR PAFOS EMPLOYMENT BY LIJMC IS IRRELEVANT AS IT IS UNDISPUTED THAT THE PROPORTED CONTINUOUS CARE OCCURRED AT A PRIVATE OFFICE AND WITHIN THE PHYSICIAN CAPACITIES AS EMPLOYEES OF THIS PRIVATE OFFICE Defendant incorporates by reference each and every argument made in support of defendants’ motions contending, among other things, that: 1) the plaintiff testified that she sought and obtained prenatal care from Dr. Deepak Nanda’s private office and understood that either Dr. Nanda or Dr. Pafos would be delivering her child at LIJMC; 2) Dr. Nanda testified that the patient was admitted to the care of his private office and that he and Dr. Pafos, the only employees of the practice, attended to the plaintiff on behalf of the practice; 3) the action was brought more than 2 ½ years after April 17, 2016, the last date of related treated by LIJMC; and 4), there is no evidence that LIJMC provided continuous care to the plaintiff following her discharge on April 17, 2016. The doctors’ purported employment by LIJMC is of no import if they did not render care to plaintiff on behalf of LIJMC and only provided care on behalf of their employer, Deepak Nanda, M.D., P.C. More importantly, the only relevant employment or agency to toll the statute of limitations is the care that occurred in the post-partum visit on May 23, 2016. Plaintiff had two postpartum visits, one on April 28, 2016 and another on May 23, 2016; May 23, 2016 is the only visit date that would be timely for the purposes of the statute of limitations against LIJMC. Both post-partum visits occurred at the codefendant private office weeks after the LIJMC hospital discharge and without 6 6 of 13 FILED: QUEENS COUNTY CLERK 03/02/2022 08:58 AM INDEX NO. 717964/2018 NYSCEF DOC. NO. 203 RECEIVED NYSCEF: 03/02/2022 plaintiff ever contacting LIJMC or ever returning there for any reason related to the delivery of her child. As previously explained, April 17, 2016 ended LIJMC’s care of the patient and there was no expectation by the plaintiff or LIJMC for continued care, and in fact, there was none. Plans were made for plaintiff to follow up with her private physicians. There were no regular and routine visits by the plaintiff to LIJMC, nor was there any reliance expressly or impliedly by the plaintiff of post-discharge management by LIJMC. There were neither regular scheduled appointments with LIJMC nor any expectation of a future visit after the April 17, 2016 discharge. The patient’s postpartum visits were with Deepak Nanda, M.D., P.C. She sought care from this entity and expected postpartum management from same. The records demonstrate a continuing trust and confidence by the patient in the practice, not LIJMC. In fact, she never returned to LIJMC until she presented to the ED a year later for injuries sustained in a motor vehicle accident, completely unrelated to her delivery. Even if the doctors were both employed by LIJMC, they did not provide care, including postpartum, within the scope of their employment by LIJMC or under any agency theory that one can conceive. Continuing to remind this Court that the doctors were supposedly employed by LIJMC will not create any agency for care that was indisputably rendered on behalf of another provider. In fact, the post-partum visits did not even take place at LIJMC, on its behalf or at its behest. Accordingly, plaintiff cannot establish that during her postpartum visits with Dr. Pafos at Deepak Nanda, M.D., P.C. she continued to seek or obtained actual treatment at or from LIJMC and cannot utilize this cross-motion to reargue in an effort to convince this Court otherwise. Plaintiff had two postpartum visits, one on April 28, 2016 and another on May 23, 2016, both at 7 7 of 13 FILED: QUEENS COUNTY CLERK 03/02/2022 08:58 AM INDEX NO. 717964/2018 NYSCEF DOC. NO. 203 RECEIVED NYSCEF: 03/02/2022 Deepak Nanda, M.D., P.C; May 23, 2016 is the only visit date that would be timely for the purposes of the statute of limitations. Plaintiff would have this Court believe that, on May 23, 2016, a full month after her delivery discharge from LIJMC, and after she had already had a prior postpartum visit with Deepak Nanda, M.D., P.C., she was still under the care, even ostensibly, of LIJMC; this spurious reasoning is still unpersuasive and contrary to the evidence. In fact, plaintiff testified that she had no recall of returning to LIJMC for any care related to her delivery or the complications she sustained in connection with same. (See NYSCEF doc #122 page 19). The records and testimony herein confirm that such care by LIJMC, in fact, never happened. The plaintiff herein cannot establish a course of treatment by LIJMC for the same conditions or complaints underlying the medical claims. In fact, the certified records negates any such claim. Plaintiff’s subsequent return to LIJMC more than a year later on July 13, 2017 was for a motor vehicle accident, completely unrelated to the injures being alleged herein. That treatment did not pertain to her bladder, uterus or prior delivery, and therefore cannot be deemed continuous. In fact, plaintiff’s husband also testified that plaintiff never followed up with LIJMC in connection with the delivery of their daughter. (See NYSCEF doc #122 page 18-19). Plaintiff also did not recall a follow up with the hospital regarding her delivery. (See NYSCEF doc #122 page 19 Exhibit G of LIJMC motion sequence 5, p. 167, lines 11-19). Underscoring the fact that there was no expectation of treatment by plaintiff is paragraph 39 of the plaintiff’s attorney affirmation opposing LIJMC underlying motion, indicating that the plaintiff “was discharged from LIJMC with instructions as follow-up with Dr. Nanda as an outpatient,” and paragraphs 41-42 indicating that the “plaintiff returned to Deepak Nanda, M.D., P.C. for a follow-up post-partum care and Dr. Pafos 8 8 of 13 FILED: QUEENS COUNTY CLERK 03/02/2022 08:58 AM INDEX NO. 717964/2018 NYSCEF DOC. NO. 203 RECEIVED NYSCEF: 03/02/2022 saw her.” (See NYSCEF doc #156). The foregoing statements are consistent with the evidence that the care was to be continued by a private OB/GYN group. Since plaintiff is well beyond the statute of limitations concerning the subject admission as a matter of law and cannot establish ongoing efforts by the hospital subsequently to constitute continuous treatment, the malpractice claims and the derivative claim related thereto, were properly dismissed. IT IS THE PLAINTIFF WHO MISAPPREHENDED THE APPLICATION OF THE RELATION BACK DOCTRINE AND OVERLOOKED THE FACTS DISQUALIFYING THIS CASE FROM BEING AFFORDED THE BENEFITS OF THIS DOCTRINE LIJMC clearly outlined several reasons for the inapplicability of the relation-back doctrine to the case at bar. Plaintiff clearly overlooked and/or misapprehended LIJMC argument that: “…the ‘relation back doctrine’ does not apply where there is no separate action or amendment of the pleadings. (See CPLR § 203 (b); Spaulding v. Mount Vernon Hosp., 283 A.D.2d 634 (2d Dep’t 2001); It does not apply where there is only one claim or action. In fact, the plaintiff’s own explanation of the doctrine explicitly states that the doctrine “applies to separate actions which are ultimately consolidated” or to claims added in an amended complaint (See ¶48 of the Plaintiff’s Opposition). This action has neither. In order to establish a relationship between actions, there must be more than one action, and the earlier of the actions, must be timely. There is no other claim or action for this Court to refer to or relate this untimely action to.” (See NYSCEF doc #165 Reply Affirmation in support of LIJMC Underlying Motion: Sequence 005, pages 12-13). A clear reading of the above excerpted portion of LIJMC’s motion will reflect that LIJMC clearly stated, among other things, that the doctrine does not apply where there is only one claim or action or where there is no attempt to amend the complaint. See NYSCEF doc #165 Reply Affirmation in support of LIJMC Underlying Motion: Sequence 005, pages 12-13). In fact, plaintiff corrected noted that it “applies to separate actions which are ultimately consolidated.” See NYSCEF doc #156 Plaintiff Attorney Affirmation 9 9 of 13 FILED: QUEENS COUNTY CLERK 03/02/2022 08:58 AM INDEX NO. 717964/2018 NYSCEF DOC. NO. 203 RECEIVED NYSCEF: 03/02/2022 in Opposition to LIJMC Underlying Motion: Sequence 005, page 13). Yet, to date, and despite citing a number of cases supporting the application of the doctrine, plaintiff cannot identify for this court which two actions were consolidated or that her complaint was amended which would render the doctrine applicable. Respectfully, it is the plaintiff who continues to misapprehend the law in this regard and the context under which it applies. Regarding a “unity of interest” between Deepak Nanda, M.D., P.C. and LIJMC, plaintiff again misapplies this theory. Again, plaintiff has yet to demonstrate under what circumstances LIJMC would be united in interest with the aforesaid practice for care provided by the practice, on its premises and a month after the patient was discharged from LIJMC with no contact with the hospital. The doctrine cannot be invoked under these circumstances. Further, in Spaulding, the court found that even if there was an issue of fact as to whether the parties were united in interest, the plaintiff in that action failed to meet the other requirements and establish a relationship between the two different actions. As discussed above, there is no other action or claim for the court to establish a relationship with the instant case. Consequently, by any analysis, the doctrine is inapplicable, and therefore, the expired statute of limitations is not tolled and the Court’s decision in this regard was proper. THIS COURT PROPERLY DIMSISSED THE MEDICAL MALPRACTICE AND LOSS OF CONSORTIUM CLAIMS AGAINST LIJMC The facts and the law governing this case support a dismissal of the claims against LIJMC, including a dismissal of the claims of medical malpractice and loss of consortium. 10 10 of 13 FILED: QUEENS COUNTY CLERK 03/02/2022 08:58 AM INDEX NO. 717964/2018 NYSCEF DOC. NO. 203 RECEIVED NYSCEF: 03/02/2022 The Court correctly found that the statutory time frame governing this, and all other medical malpractice cases is 2 ½ years and that the plaintiff brought this action on November 22, 2o18, which was well after the aforesaid time frame. This is well- established law and is buttressed by the court filings and medical records before this Court. The Court also correctly found that the plaintiff failed to raise a triable issue of fact as to whether the continuous treatment doctrine applied which would toll the statute of limitations, as there was no evidence that either Dr. Nanda or Dr. Pafos acted as employees of LIJMC during plaintiff’s labor and delivery or during the follow up postpartum office visits on April 28, 2016 and May 23, 2016. Although plaintiff argued strenuously then and now that the doctors are employees of LIJMC, plaintiff has yet to establish that the care that these doctors rendered to her was within the scope of the claimed employment. Further, plaintiff has yet to negate the fact that the doctors treated her within the scope of their employment with Deepak Nanda, M.D., P.C. Any claimed issue of fact is artificial because plaintiff’s own testimony and that of the doctors support a finding that the care she received from the physicians was on behalf of Deepak Nanda, M.D., P.C. as their private patient. As such, and as plaintiff has not established that the Court overlooked or misapprehended any law or facts in dismissing the claims against LIJMC of medical malpractice and loss of consortium, this Court must deny the plaintiff’s cross-motion to reargue. WHEREFORE, based upon the foregoing, it is respectfully requested that this Court deny plaintiff’s cross-motion motion in its entirety. 11 11 of 13 FILED: QUEENS COUNTY CLERK 03/02/2022 08:58 AM INDEX NO. 717964/2018 NYSCEF DOC. NO. 203 RECEIVED NYSCEF: 03/02/2022 Dated: New York, New York March 2, 2022 Yanique L. Burke ____________________________ Yanique L. Burke 12 12 of 13 FILED: QUEENS COUNTY CLERK 03/02/2022 08:58 AM INDEX NO. 717964/2018 NYSCEF DOC. NO. 203 RECEIVED NYSCEF: 03/02/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ═════════════════════════════════ THERESA ROBINSON and DEREK ROBINSON, Index No.: 717964/2018 Plaintiff, ATTORNEY 202.8-b WORD CERTIFICATION -against- NORTHWELL HEALTH, INC., LONG ISLAND JEWISH MEDICAL CENTER, DEEPAK NANDA, M.D., P.C., DEEPAK NANDA, M.D. and EMMANUEL PAFOS, M.D., Defendant. ═════════════════════════════════ I hereby certify, pursuant to 22 NYCRR §202.8-b, that the total number of words in the foregoing Affirmation in Opposition to the Plaintiff’s Cross-Motion, inclusive of point headings and footnotes, and exclusive of the caption and signature block is 3323, and thus complies with the word count limit of 7,000 words for affidavits, affirmations, briefs and memorandum of law. Dated: New York, New York March 2, 2022 Yours, etc. AARONSON RAPPAPORT FEINSTEIN & DEUTSCH, LLP Yanique L. Burke ____________________ YANIQUE L. BURKE Attorneys for Defendants NORTHWELL HEALTH, INC. and LONG ISLAND JEWISH MEDICAL CENTER 600 Third Avenue New York, NY 10016 (212) 593-6700/(929)-286-3341 13 13 of 13